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• Introduction
• Section 23(4)
• Section 25(d)
• Section 27(1)
• Limits On Bill Of Rights Act Rights
• Conclusions

5 New Zealand Bill of Rights Act 1990

INTRODUCTION

138 THE PROVISIONS in the New Zealand Bill of Rights Act 1990 relevant to the privilege against self-incrimination include ss 23(4) and 25(d) and s 27(1). The right to counsel in s 23(1)(b) is also relevant to the privilege, as the High Court in R v P [1990–92] 1 NZBORR 311, 321 recognised:

It is a question of upholding the right of the defendant to have his rights notified to him before he says something which may or may not incriminate him.

139 Section 23(4) provides that everyone who is arrested or detained under any enactment for an offence or suspected offence shall have the right to refrain from making any statement and to be informed of that right. Section 25(d) says that everyone who is charged with an offence has, in relation to the determination of the charge, the right not to be compelled to be a witness or to confess guilt. Section 27(1) provides:

Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person’s rights, obligations, or interests protected or recognised by law.

140 Legislation which removes or restricts the privilege against self-incrimination is not inapplicable merely because it is inconsistent with the above provisions. This is the effect of s 4 of the Bill of Rights Act. However, when such legislation is introduced to the House, it will be vetted for compliance with those provisions and, under s 5, be authorised only if it prescribes such reasonable limits “as can be demonstrably justified in a free and democratic society”.

141 Sections 23(4), 25(d) and 27(1) of the Bill of Rights Act are not identical to the privilege. The differences and similarities will be discussed further below. Section 28 of the Act provides that an existing right or freedom shall not be held to be removed or restricted by reason only that the right or freedom is not included in the Act, or is included only in part. This means that where the Bill of Rights Act provisions are narrower than the common law privilege, they cannot be interpreted as limiting it. The common law privilege still applies unless other legislation removes or restricts it.

SECTION 23(4)

142 Section 23(4) (right of person arrested or detained under any enactment for an offence or suspected offence to refrain from making any statement and to be informed of that right) is the right of silence, applicable when offences are investigated. However, s 23(4) encompasses the privilege against self-incrimination only in relation to oral statements, not in relation to the production of documents. Section 23(4) is broader than the common law privilege against self-incrimination in that, for the right to apply, the information sought need not be self-incriminating. It is narrower than the common law privilege, in that it applies neither to documents nor in all the circumstances in which a witness can be compelled to incriminate himself or herself (ie, the section is restricted to compulsion by way of arrest or detention for an offence or suspected offence). In other words, the common law privilege applies in some contexts in which s 23(4) does not: see chapter 12 for examples.

143 The courts have recognised that s 23(4) is applicable in some civil contexts. In Official Assignee v Murphy [1993] 3 NZLR 62, for example, Thomas J held that there can be a “detention” under the examination provisions in the Insolvency Act 1967. However, the words “offence or suspected offence” in s 23(4) mean that the civil contexts in which s 23(4) applies will be limited. For example, the provision will be inapplicable when the risk of self-incrimination concerns the imposition of a civil penalty rather than prosecution for an offence.

144 The Bill of Rights Act provisions and jurisprudence impacting on the privilege are useful in showing the desirable direction for reform of aspects of the common law privilege which are unclear or unsatisfactory. For example, s 23(4) includes the right of the person being questioned to be told he or she is not required to make a statement. The common law privilege does not require this. As the Court of Appeal decision in R v Mallison [1993] 1 NZLR 528, 532 indicates, advice of rights is often necessary in order that people may fully utilise them. There the court said that it was not only necessary that rights be conveyed, in the sense of advice given to a party, but that the party understands the advice.

SECTION 25(d)

145 Section 25(d) (right of person charged with an offence not to be compelled to be a witness or confess guilt) applies once a person has been charged with an offence, and is again not entirely synonymous with the privilege. The privilege’s application is not limited to criminal proceedings. In addition, s 25(d) goes further than the privilege, which is generally a privilege in respect of answering particular questions, rather than a privilege of refusing to answer any questions at all: see chapter 7 for a discussion of one exception relating to actions for civil penalties.

146 Section 25(d) has been modelled on, and closely resembles, article 14(3)(g) of the International Covenant on Civil and Political Rights, which provides that every person facing a criminal charge shall have the right “[not] to be compelled to testify against himself or to confess guilt.”

SECTION 27(1)

147 Although New Zealand courts have not determined whether s 27(1) (right to the observance of the principles of natural justice by tribunal or public authority) encompasses the privilege against self-incrimination, freedom from self-incrimination is arguably implicit in the right to natural justice. This issue is particularly significant because s 27(1) is applicable in civil contexts, whereas s 24(3) may apply only to a limited extent in civil contexts (see the discussion of Murphy above), and s 25(d) not at all.

148 Before the Bill of Rights Act was enacted, the Court of Appeal held in Busby v Thorn EMI Video Programmes Ltd [1984] 1 NZLR 461 that answers given under the compulsion of Anton Piller orders may not be used to prosecute the person answering. The point has been made in Adams (Robertson, ch 10.16) that it would be possible for a court to hold that such a result was now dictated by s 27(1). In Adams, the suggestion is also made that the right to natural justice guaranteed in s 27 encompasses the right to freedom from self-incrimination, and that this is not limited to the proceedings themselves, but can occur at an earlier point:

[Section] 27 provides a wide “catch-all” right to fair trials which may permit Courts to hold that rights not specifically covered elsewhere in the Bill of Rights are nevertheless implicit in the right to natural justice. An example would be the right not to make incriminating statements prior to trial and prior to arrest or detention.

149 Paciocco argues that the privilege meets the criteria of “fundamental justice” referred to in s 7 of the Canadian Charter of Rights and Freedoms.[34] Section 7 states that:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

150 New Zealand courts have yet to decide whether natural justice is synonymous with fundamental justice. Furthermore, Paciocco’s inclusion of the privilege within the criteria of “fundamental justice” might be attributable to the fact that there are no equivalents to ss 23(4) and 25(d) in the Canadian Charter. In relation to the latter, s 11(c) – “right not to be compelled to be a witness in proceedings against that person in respect of the offence” – comes closest.[35]

151 The application of s 27 to the early stages of an investigation or to civil inquiries may be restricted, depending on the meaning of “determination” in s 27(1). In one case, R v K (unreported, High Court, Hamilton, 5 May 1995, M 58/95, Hammond J) the court took a very narrow view of the word’s scope, in deciding that it had no application to the exercise of prosecutorial discretions in laying charges:

As to s 27(1), it seems to me that section does not extend to the prosecutor’s role. Even assuming for the purposes of argument that a prosecutor is a “public authority”, such a person does not make “a determination” of the defendant’s rights. In the criminal justice process that is attended to by the relevant judicial officer.

LIMITS ON BILL OF RIGHTS ACT RIGHTS

152 The privilege reflected in ss 23(4), 25(d) and 27(1) is not absolute, as the earlier reference to s 4 of the Act indicates. However, the terms of ss 5 and 6 of the Act lend support to the contention that proposed encroachments on the privilege should be weighed against the interests the privilege protects and should impair the privilege as little as possible. Section 5 only authorises limits on rights contained in the Act which are “reasonable” and “prescribed by law”. These words suggest the need for a degree of specificity in legislation curtailing the privilege. This is reinforced by s 6, which states:

Whenever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.

CONCLUSIONS

• There are three provisions in the New Zealand Bill of Rights Act 1990 which reflect, but are not identical to, the common law privilege against self-incrimination – ss 23(4), 25(d) and 27(1).
• The Bill of Rights Act provisions reflecting the common law privilege co-exist with, and do not restrict or remove, it.
• Sections 23(4) and 25(d) are largely restricted to the context of criminal investigations and proceedings, whereas s 27(1) is capable of a wider application.
• Proposed encroachments on the privilege should be specifically enacted, weighed against the interests the privilege protects, and should impair the privilege as little as possible. This is consistent with the “reasonable limits” test in s 5 of the Bill of Rights Act.
• Section 5, together with s 6 of the Bill of Rights Act (ie, interpretations should be consistent with the rights in the Act where possible), points to the need for specificity in legislation curtailing the privilege.
• The Bill of Rights Act provisions and jurisprudence impacting on the privilege may be useful in showing the direction for reform of aspects of the common law privilege which are unclear or unsatisfactory (eg, advice of the privilege’s application).